Judicial Precedent Ch6 Y1 Flashcards
What is the doctrine of precedent?
following the decisions of previous cases, especially from higher courts
What are the three types of precedent?
Original Precedent
Binding Precedent
Persuasive Precedent
What is Original Precedent?
a point of law that has never been decided.
What is Binding Precedent?
a decision from an earlier case which must be followed, unless a distinction can be made
what is persuasive precedent?
a precedent that is not binding but judges may consider following
Where can persuasive precedent originate from?
inferior courts
Privy council rulings
Obiter Dicta statements
dissenting judgements
What is the Practice statement 1966?
a statement allowing the house of lords to overrule itself
What is meant by stare decisis?
stand by what has been decided and do not unsettle the established
this is what the doctrine of precedent is based on
What is meant by Ratio decidendi?
The reason for the decision.
this is what creates the precedent
What is meant by obiter dicta?
Other things said
What is meant by Distinguishing?
avoiding following binding precedent because the facts of the case are sufficiently different from the case the precedent came from
What cases illustrate judges making distinctions?
Balfour v Balfour
And
Merritt v Merritt
What are the advantages of judicial precedent?
Certainty in law
Consistency and fairness in law
The law becomes precise
The law is flexible as the law can change
Save time by avoiding lengthy litigation for cases with similar facts
What are the disadvantages of judicial precedent?
Rigidity
Law can become complex
illogical distinctions can be made
Slow change
